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HomeMy WebLinkAbout2011-4866SHAWN HOPPER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION SUSAN HOPPER, Defendant : NO. 2011-4866 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 1, 2011. In this custody case, in what is presumably intended to pass for zealous representation, Defendant's' counsel has filed an interlocutory appeal2 from an interim custody order which granted her client primary physical custody of the parties' three children and awarded modest periods of temporary or partial physical custody to Plaintiff, the father.3 Defendant also filed (1) an emergency application for stay or supersedeas in the Superior Court,4 (2) a 25 -page statement of errors complained of on appeal ,5 (3) a second statement of errors complained of on appeal ,6 and (4) a motion for reconsideration by this court, complaining that she had been prohibited from calling ' Although the proper caption of the case, which commenced as a divorce action filed by the mother, would designate the father as Defendant and the mother as Plaintiff, the court has adopted the caption of the father's custody complaint within the divorce action for purposes of this opinion. 2 Notice of Appeal, filed November 2, 2011. The appeal was filed from an interim order entered after an initial day of hearing in which both parties presented testimony in support of their respective positions and with the understanding that a further period of hearing would be provided and that an interim order would be entered in the meantime. See Order of Court, October 27, 2011. Since then, a second day of hearing has been held and a third day has been scheduled for December 22, 2011. An interim custody order is interlocutory and not appealable in the absence of permission. See P.T. v. MH., 2008 PA Super 155, 953 A.2d 814; In re F.B., 2007 PA Super 146, 927 A.2d 268; Kassam v. Kassam, 2002 PA Super , 811 A.2d 1023; G.B. v. M.M.B., 448 Pa. Super. 133, 670 A.2d 714 (1996); see also Pa. R.A.P. 311 (interlocutory appeals of right); Pa. R.A.P. 312, 1301-23 (interlocutory appeals by permission); 42 Pa. C.S. §702 (same); Pa. R.A.P. 341 (general rule permitting appeals from final orders); s Order of Court, October 28, 2011. 4 This application was denied by the Superior Court by order dated November 4, 2011. Order, November 4, 2011, No. 1901 MDA 2011. s Defendant's Statement of Matters Complained of, filed November 7, 2011. This statement included a diagnostic report pertaining to the Plaintiff. 6 Defendant's Concise Statement of Matters Complained of Filed in Response to Order Dated November 7, 2011, Attached Hereto As Exhibit "A," filed November 16, 2011. witnesses to support her position, that a letter from one physician to another regarding a purported sleep disorder of Plaintiff was not admitted into evidence, that a hearing memorandum submitted by Plaintiff's counsel should not have been considered by the court, and that a question by the court indicated that it did not understand the gravity of Plaintiff's sleep disorder.' In part, Defendant's first statement of errors complained of on appeal reads as follows: 1. The Court heard minimal testimony from the parties. 2. In the best interest of the children, it is appropriate to have a complete and accurate picture of all of the factors surrounding the parties and the children so that the best interest of the children can be determined. 3. Plaintiff (herein after referred to as "Father.) had a psychologist, Richard S. Klein, Ph.D., testify on his behalf. 4. The psychologist was hired by Father specifically for the custody matter, and not for treatment. 5. Father's expert psychologist opined that Father was not a danger to himself or others. 6. Father's expert testified that he did not inquire of Father whether he was on any medication at the time of the mental health evaluation. 7. The psychologist was unaware of the PFA Complaint and the email from Father to Mother looking forward to being reunited with Mother and the children in heaven. 8. The psychologist testified that he was not informed that Father had a PFA Order against him. 9. Father's psychologist testified that he was unaware that Father had been charged with Contempt of the PFA Order and made an arrangement with the District Attorney to avoid prosecution. 10. The psychologist was unable to say whether or not his opinion about Father's mental health would change had he known of these facts. 11. The psychologist testified as though the report based on the MMPI -2 taken by Father was his report, but Plaintiff's Exhibit 1, states it is the Report by "Robert M. Gordon, Ph.D. (See copy of Defendant's Exhibit 1.) 12. The hearing began at 9:30am. 13. The Court took a break at noon. 14. The Court resumed this matter at 1:30pm. 15. Cross examination of Father did not occur until 1:30pm. 16. Testimony of Defendant, Suzanne Hopper, (herein after referred to as "Mother") only commenced at approximately 2:45pm. Defendant's Motion for Reconsideration, filed November 2, 2011. 2 17. A fifteen (15) minute break was taken in the middle of Mother's testimony. 18. Mother's testimony was stopped by this Honorable Court at 3:45pm. to allow Father's counsel to cross examine Mother on the testimony she had provided to that point in time. 19. The Court concluded the hearing at approximately 4:15pm. 20. Mother was not permitted to put on her case in chief, let alone complete her own testimony. 21. Mother should have had the opportunity to call a rebuttal witness to the psychologist's testimony before the court made conclusions about it and modified the custody order to eliminate supervision of Father's custodial periods. 22. Father's expert testified from a report that appears not to have been his own, but the "Report of Robert M. Gordon, Ph.D.", (See copy of Defendant's Exhibit 1.) and the bases of which Mother could not examine. 23. Had Mother been able to produce witnesses to provide the Court with a complete picture of the status of the parties and the children, Defendant Mother believes the Court would not have entered the Order of October 28, 2011 which removed supervision. 24. Father entered into a Protection From Abuse Order voluntarily agreeing to supervised custodial times after consulting two (2) attorneys. 25. To continue the arrangement Father agreed to until a full hearing can be held to determine the best interest of the children is the most appropriate way to address the well being of the children in this matter. 26. The children of the parties are of such tender years that they are not able to care for themselves, Morgan being four (4) years old, Drew being three (3) years old, and the infant, Liliana, not even two and one-half (2'/2) months of age. 27. Mother believes that the Court gave no weight whatsoever to the fact Father agreed to the entry of the PFA Order without any admission or denial of guilt, and the Court further ignored the fact Father was charged by the police with Contempt of that Order and made a deal with them that he would not violate the Order for ninety (90) days, and if he complied for ninety (90) days, the charges would be dropped, and the Court further ignored the fact that after that deal was struck, he continued to violate the PFA Order.' 28. Mother believes that Father's lack of respect for the PFA Order and the terms of his agreement on the contempt charges of the PFA Order demonstrate his instability and his refusal to abide by the PFA Order. s [sic] mental health would change had he known of these facts [sic]. 29. Father entered into the Protection From Abuse Order voluntarily agreeing to supervised custodial times after consulting two (2) attorneys. 30. When Father was testifying to his sleep disorder, the Court opined and inquired from the bench, "So you have insomnia?" x Apparently, the purported violations, which were not adjudicated, were non -threatening e-mails sent by Plaintiff to Defendant. 3 31. It appears that the Court made a conclusion that Father had insomma.9 32. Mother's testimony was to the contrary. 33. Mother was not permitted to put on witnesses who would testify that Father has told them that he has trouble hearing the children and Mother when he was asleep. 34. Mother was prevented from putting on witnesses who would testify that Father has told them that he has a serious sleep disorder that necessitates him napping mid-day, requires him to sleep in on weekends until 10:00am or 11:OOam. 35. Mother was not afforded the opportunity to present a letter from one of Father's treating physician [sic] to another of his treating physicians about his sleep disorder which contained references to Father's own reports to his treating physician that even with the baby monitor turned up on its highest setting, he could not hear the children. 36. Mother believes that without further testimony, the Court has not gotten an accurate picture of Father's behaviors, and the danger it poses to infants and toddlers. 37. Mother believes that if she had been permitted to present her case, the Court would not have directed that supervision of the children be dropped. 38. Mother was not permitted to call other witnesses to testify it would be dangerous for the children to spend overnights with Father. 39. Permitting unsupervised visitation when Father has such a serious sleep disorder, puts the children at significant risk of harm during the night and day whenever Father may choose to sleep. 40. It was the testimony of Mother that Morgan (the 4 year old) was unable to waken Father on one 911 occasion when she was left alone with him. 9 This assertion is unfair to the court. The exchange in question, prompted by the testimony of Plaintiff father that he had "sleep issues," was as follows: THE COURT: When you say you had sleep issues, I guess I assumed you couldn't sleep, but that is not what you are saying? THE WITNESS: Yes and no. THE COURT: What are the sleep issues? THE WITNESS: When I started going to the doctor I was waking up about 30, 40 times in the middle of the night. THE COURT: So it was insomnia? That is the sleep issue? THE WITNESS: But then when I woke up I just felt extremely fatigued, and throughout the day would feel fatigued. They thought I had sleep apnea, and I had a C - pack mask for awhile and they ruled that out. And they tried doing different types of medications to increase my alertness when I would wake up and also allow me to sleep through the night without waking up multiple times, and it has helped. THE COURT: Okay. In her testimony, Defendant mother depicted Plaintiff's sleep disorder as affecting his ability to be wakened from sleep, and as posing a threat to the safety of the children for that reason. The court considered the testimony of both parties on the subject; its questioning of Plaintiff on the subject represented the court's attempt to clarify his position as to the nature of the disorder. 11 41. It is not in the best interest of the children to be in the care of someone who cannot hear them while he is asleep. 42. Mother believes the "Memorandum of Law" handed up by Father's counsel prior to the commencement of the custody hearing may have influenced this Honorable Court. 43. The purported Memorandum argues and states as a fact that Father is "fit, capable of making reasonable child rearing decisions, and willing and able to provide love and care for their children." 44. Mother believes this Memorandum or Argument Brief which contains inaccurate characterizations of Mother which are not supported by the record, may have influenced this Honorable Court in arriving at it's Order of October 26, 2011. 45. The Memorandum was not solicited by the Court, and contains Argument as opposed to merely a Memorandum of the Law. 46. Mother believes Father's instability is sufficient basis for the Court not to remove the supervision provision. io Defendant's second statement of errors complained of on appeal claimed that she had been denied due process and included the following: 1. The Order of Court appealed from is based upon a very abbreviated hearing and denies Defendant due process and the ability to present her case so that the Court may determine the best interest of the children. 2. The record does not support a finding that it is in the best interest of the children to alter the previous Orders of Court to eliminate supervised custodial visits with Plaintiff. 3. The record upon which the best interest of the children should be determined is not complete nor adequate to determine that the removal of the supervision provision that the parties agreed to and which became an Order of Court should be removed. 4. The minimal amount of time that Defendant was given to present her case did not provide the Court with sufficient evidence to make a determination that in the best interest of the children, supervision should be removed. 5. What evidence the Court heard was limited and is not sufficient for a Court to make a determination as to what constitutes the best interest of the children, particularly when the Court anticipated having at least two (2) more days of hearing on the subject matter. 6. Plaintiff's counsel handed a "Memorandum of Law" to the Judge immediately before calling her first witness, and that Memorandum of Law was in fact an Argument Brief not requested by the Court, and as such, may have impacted the willingness to [sic] the Court to enter an Order altering the custodial arrangement without affording Defendant the opportunity to address the arguments raised in Plaintiffs "Memorandum of Law"." 10 Defendant's Statement of Matters Complained of, filed November 7, 2011. " Defendant's Concise Statement of Matters Complained of Filed in Response to Order Dated November 7, 2011, Attached Hereto As Exhibit "A," filed November 16, 2011. E This opinion in support of the temporary custody order appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Plaintiff is Shawn A. Hopper, a 36 -year-old pharmacist who resides in Carlisle, Cumberland County, Pennsylvania. Defendant is Suzanne Hopper, a 35 -year-old who is not currently employed and who also resides in Carlisle, Cumberland County, Pennsylvania. The parties were married on August 21, 2004, and separated on May 23, 2011, when Plaintiff arrived home to find that Defendant had taken the children and was moving out. Two children were born of the marriage prior to the separation, Morgan Evelyn Hopper (d.o.b. March 10, 2007) and Drew Michael Hopper (d.o.b. August 8, 2008), and a third child was born shortly after the separation, Liliana Hopper (d.o.b. August 27, 2011).12 Following the separation, according to Plaintiff's testimony, Defendant refused to permit him to see the children, and he ultimately consented to the entry of a protection from abuse order against him, which did not admit misconduct on his part but which afforded him at least limited, supervised contact with the children. This order specifically provided for its modification pursuant to a regular action for custody. To that end, Plaintiff filed a custody complaint respecting the parties' older children on June 10, 2011, and the parties' subsequently -born child was included in the case by agreement of counsel on September 1, 2011. An all -day hearing was scheduled by the court following a custody conciliation conference for October 27, 2011, and Plaintiff, the father, was designated the moving party for purposes of the presentation of evidence. 13 However, it was obvious to the court from the pre -hearing memoranda submitted by counsel that each side intended to make a very detailed record of grievances against the other, and that on a short-term basis the court's schedule would not accommodate more than a temporary custody order. Accordingly, it was agreed that the 12 The parties' third child was born after Defendant left the home. " Order of Court, July 20, 2011. 0 court would hear evidence from Defendant as well as Plaintiff on the first day. At the conclusion of the initial day of hearing, the court entered an order indicating that additional days of hearing would be scheduled, that each party had reserved the right to call additional witnesses, including themselves, and that an interim order would be issued in the meantime. 14 At no time during the hearing did Defendant's counsel object to this procedure, complain that she had been prevented from calling witnesses, or indicate that the entry of interim order based upon the evidence presented thus far would represent a due process violation or be otherwise inappropriate. At the hearing, Defendant mother, through cross-examination and her own testimony, made quite clear her position that Defendant father had a sleep disorder that at times made it difficult to wake him and that in her view he had installed a child seat in a vehicle in a manner that was unsafe for its occupant. Plaintiff father portrayed Defendant as an extraordinarily controlling individual, pointed out that his sleep disorder had not prevented him from maintaining employment as a pharmacist, and offered the opinion of a psychologist that he was not a danger to himself or others. Following the initial period of hearing, the court entered an interim order granting Defendant mother primary physical custody of all three children, and awarding Plaintiff father temporary or partial physical custody of the parties' two older children on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and temporary or partial physical custody of the parties' youngest child, who was still an infant, once each week for six hours on Saturday. 15 14 Order of Court, October 27, 2011. is Interim Order of Court, October 28, 2011. The entire order was as follows AND NOW, this 28th day of October, 2011, upon consideration of Plaintiff's Custody Complaint with respect to the parties' children, Morgan Evelyn Hopper (d.o.b. March 10. 2007), and Drew Michael Hopper (d.o.b. August 8, 2008), and of an amendment to the complaint adding a third child as a subject of the proceeding, Liliana Hopper (d.o.b. August 27, 2011), pursuant to an order of court dated October 14, 2011, and following an initial period of hearing held on October 27, 2011, which has not yet been completed, it is ordered and directed as follows, pending further hearing and order of court: 1. Legal custody of the children shall be shared by the parties; 7 Defendant's appeal followed. DISCUSSION The gist of Defendant's statements of errors complained of on appeal appears to be that the court (1) should have accepted her position that Plaintiff father could not be trusted to be alone with his children in the absence of a supervising adult because of a sleep disorder, a statement he allegedly once made that he hoped the family would someday be reunited in heaven, and his incompetent positioning of a child's car seat, (2) displayed its misunderstanding of the gravity of his condition by asking a question on the subject, (3) erred in sustaining an objection to the admission of hearsay, (4) "prevented" her from calling witnesses, and (5) may have been led astray by a memorandum submitted by Plaintiff's counsel. Custody cases are rarely characterized by identical views as to the parenting capacities of the parties, and the court is not obliged to accept the most alarmist position of either party. In this case, Defendant supported her view, on direct and cross - 2. Primary physical custody of the children shall be in Defendant, the mother; 3. Temporary or partial physical custody of the children shall be in Plaintiff, the father, at the following times; a. With respect to Morgan Evelyn Hopper and Drew Michael Hopper, (1) From September 1 until May 31, (a) on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., provided that where the following Monday is a federal holiday the period of partial custody shall extend to that Monday at 6:00 p.m., (b) on Thanksgiving Day from 2:00 p.m. until 6:00 p.m.[,] and (c) from Christmas Day at 2:00 p.m. until December 29 at 2:00 p.m. (2) From June 1 until August 31, during one week out of every three weeks, from Friday at 6:00 p.m. until Friday at 6:00 p.m. b. With respect to Lilana Hopper, once each week, on Saturday, from 12:00 noon to 6:00 p.m.; 4. Nothing herein is intended to preclude the parties from deviating from the terms of this order by mutual agreement. '3 examination, on the initial day of hearing that the parties' children would be in physical danger in Plaintiff's custody unless another adult were supervising him, but it appeared to the court, in its capacity as fact -finder, that her apprehension of this risk, even if sincere, was highly exaggerated. The minimal periods of temporary or partial physical custody of the children awarded to Plaintiff pending further hearing and a final custody order did not, in the court's view, represent a threat to the children's well-being, nor were they the result of a misapprehension as to the nature of Plaintiff's sleep disorder, an incorrect ruling on the admissibility of hearsay, a violation of Plaintiff's right to due process, or the court's confusion as to the difference between a memorandum submitted by counsel and an evidentiary record. Margaret Simok, Esq. Suite 102 201 Grandview Ave. Camp Hill, PA 17011 Attorney for Plaintiff father Mary A. Etter Dissinger, Esq. 28 N. 32nd St. Camp Hill, PA 17011 Attorney for Defendant mother 0 BY THE COURT, J. Wesley Oler, Jr., J.